+ Sponsors

Friday, 08 July 2011

When the Internet Turns Vicious

Remember the issue we discussed a few weeks ago about Andy Baio, Jay Maisel, and their spat over "Kind of Bloop"? Well, Jeremy Nicholl of The Russian Photos Blog has posted an article that takes the research several levels deeper—and exposes a troubling level of viciousness and actual real-world mob-mentality intimidation. It's called "The Photographer, The Entrepreneur, The Stockbroker And Their Rent-A-Mob." Recommended reading.

By the way, kudos to Jeremy for a superior blog post. That's not blogging, that's journalism. [Note:See Andy Baio's comment below for another view on that; Jeremy Nicholl then responds to Andy. —Ed.]

Note: Links in this post may be to our affiliates; sales through affiliate links may benefit this site. More...Original contents copyright 2011 by Michael C. Johnston and/or the bylined author. All Rights Reserved.

Featured Comment by TBannor: "I read this a couple of days ago and I agree, it's a great piece of work. The thing I think is somewhat troubling is the suggestion that people contact the stockbroker's employer at the contact info link which sort of turns it into mob against mob. Perhaps these people can be shamed without resorting to that.

"By the way, the new Google Search by Image tool is a great way to track down online infringements. Doing so has opened my eyes to the downside of licensing images for online use. Once an agency or photographer supplies an image with their watermark removed, it's open season on copying. A few of my images licensed for legitimate use have ended up on blogs all over the planet."

Featured Comment by HT: "The name Thomas Hawk rang a bell for me but I couldn't place it. A bit of Googling jogged my memory. He's the same guy who pilloried Jill Greenberg back in the day. Ugh. Some things never change."

Featured Comment by Andy Baio [Note:because Andy is a principal in this controversy, his comment is presented unedited. I've added only one elided word, in square brackets. —MJ]: "I don't know Thomas Hawk and I don't remember ever meeting him or communicating with him online. But I read Hawk's blog posts and disagreed with much of it. His repeated name-calling, leaps of logic, questionable grasp of copyright law, hostile attitude, and the repeated inaccurate (and irrelevant) references to each of our finances were frustrating. This isn't a David vs. Goliath tale, and while that kind of reductionist thinking makes for a dramatic story, it doesn't reflect reality.

"But Jeremy Nicholl's posts are just as ridiculous in their hysterics, albeit on the other side. They're riddled with inaccuracies, and attempt to paint me with the same brush as Thomas Hawk, anonymous Internet commenters, and the people who defaced Jay Maisel's building. I find it offensive to state that my original blog post was 'an ammunition dump' responsible for starting a 'witch-hunt.' I went out of my way to present the facts of the settlement in a calm, straightforward, and non-confrontational way—which, I should add, was approved by Jay Maisel and his legal counsel without objections.

"The reality is that people weren't angered by my blog post—they were upset about the facts of the settlement. The mere disclosure of the terms is what got people angry. Whether it came from me or an article in the New York Times, the effect would be the same. People like Jeremy can blame me for going public about it, but they're effectively shooting the messenger.

"I love that so many people have been discussing the merits of the case—with some of the best discussion here on The Online Photographer—but it's been incredibly disheartening to see important and difficult issues around fair use, intellectual property, and copyright reform devolve into personal attacks about the personal character of Jay Maisel and myself through the words of people like Thomas Hawk and Jeremy Nicholl.

"Some corrections to Nicholl's post: I don't know Thomas Hawk, and certainly was never his roommate or client. I never paid someone to make the artwork; it was made by a pixel-artist friend for free. The terms of the Upcoming.org acquisition are covered under a non-disclosure agreement, but I can confirm it was a fraction of the $10–30M figure that Jeremy Nicholl pulled out of thin air. Also, Yahoo! didn't just buy some sort of intangible intellectual property: they were buying the assets of a website, including a codebase, design, data and domain. Comments are turned off in my entry because that was part of my settlement agreement with Jay Maisel, intended to prevent potentially disparaging comments against Maisel; not [to] stop discussion. (I think it was the right move.) And if hosting The Grey Album is wrong, I don't want to be right.

"And a significant omission: I campaigned against the sort of harassment Jeremy Nicholl mentioned, including public requests for civility posted to Jay Maisel's Facebook page, my Twitter account, and prominently at the top of my blog post.

"Thank you for doing such a great job moderating these discussions, it's been a delight to read."

Featured Comment by Jeremy Nicholl: "I believe Andy Baio's 'corrections' to my blog posts contain a number of misleading and inaccurate statements. Specifically:

• Andy is offended by my description of his blog post as an 'ammunition dump' raided by Hawk et al. The fact is that Hawk, the supporters who organised the defacing of Maisel's home, and many others quoted Andy's blog as justification for their behaviour. Andy further neglects to mention that I also described his blog post thus: 'his account was reasoned and devoid of the rants that were to come from others; and since his story was apparently vetted by Maisel's attorneys we can reasonably assume it to be factually accurate.'

• I did not claim that Andy knows Hawk, or that they were room-mates: Scott Kelby made those claims, as I explained and linked to in my post.

• Andy says I was wrong to claim that he sold intellectual property to Yahoo. I note that he retracts that in a later comment, thereby confirming my original statement.

• Andy claims I pulled my Upcoming.org sale guesstimate out of thin air. Not quite true. This was one of a string of acquisitions made by Yahoo in 2005. The acquisition was big enough to make BusinessWeek; industry estimates of the other acquisitions are $10–50M. My supposition that it was very unlikely that the Upcoming.org deal was, as Andy claims, 'a fraction' of the other deals was reasonable.

• Regarding copyright law Andy says: 'If hosting The Grey Album is wrong, I don't want to be right.' One couldn't ask for a better example of the sense of entitlement that led Andy to use Maisel's work without permission.

• Andy claims I 'significantly omitted' his campaign against the harassment of Maisel. Wholly untrue: I quoted in full and prominently highlighted his appeal for civility near the top of my first post.

"Andy clearly feels I've given him a rough time (although it's obviously little enough compared to what Maisel has had to endure), but the truth is I'm not that concerned about the original copyright dispute: it's what happened afterward that is significant. My feelings are best summed up by my reply to one of his supporters who was trolling me on twitter last week: 'You have your opinion I have mine. Neither's been proven in court since Andy Baio settled. Live with it. He can. But not so interested in Baio/Maisel per se. They disagreed, settled: end of. What's nasty is hate mob unleashed against Maisel.'

"Apart from the statement on his blog, Andy was all but invisible during the widespread and sustained assault on Jay Maisel. Now, almost two weeks later, he's posted here a pretty damning indictment of the behaviour of Thomas Hawk, who was arguably the most vociferous and extreme of all those who attacked Maisel. If Andy had posted such an indictment at Hawk's blog and a few other places when the row was at its height he would have removed the mob's justification and stopped them in their tracks. Andy chose not to do so. It's reasonable to wonder why he chose not to intervene.

"And finally, Terry Hart has just published a lengthy analysis and dismantling of Andy's attempted Fair Use defence in the Bloop case at Copyhype. Andy would doubtless disagree with Hart's analysis: but Terry Hart is an intellectual property lawyer and Andy Baio isn't."

-

I'd like to thank both Andy and Jeremy for weighing in on this issue here on TOP. I'd just like to point out that they are to some degree talking at cross purposes: Andy is naturally most concerned with the alleged copyright violation and its settlement; Jeremy is most concerned with the reactionary mob-like response whipped up by a third party that was directed at Jay Maisel. I don't personally want to publish more about this issue here at TOP, but I'd like to close by mentioning that my own concern is somewhat different from both of theirs: it's to advocate for continuing public education about copyright and to caution potential infringers not to. —Ed.

Comments

Isn't it a little bit ironic that a block post that expounds the evils of internet mobs, also posts the address of the employer of one of the persons he disagrees with (thereby most likely costing that person his livelihood)?

To me. while Jeremy's blog post did contain some interesting research, it ultimately succumbs to being a part in an internet flame war, rather than a reporter of the same.

While I don't disagree with premise of the article, my interest came to a screeching halt at the term "freetard". The word is a play on the pejorative term "retard", which is an insult to people with both developmental disabilities and mental illnesses. I'm also quite surprised you describe this as superior blogging, journalism even.

Mike,
In the limited reading I've done on this issue, the thing that most people seem to miss is that Baio used Maiel's copy written photo, modified or not, for the same purpose as its source. It's like saying I could steal your car, and so long as I repaint it and use it for the same purpose as you do, driving, it's ok. After all, even though it has the same shape, it is a different color. It also amazes me that so many people are concerned with how much money Maisel is worth. He made that money, no matter how much of it there is, off of his photographs, HIS photographs. I wonder how different it would have been if Maisel had used something created by Baio without his permission?
All the best,
Thomas F.

"While I don't disagree with premise of the article, my interest came to a screeching halt at the term 'freetard.' The word is a play on the pejorative term 'retard,' which is an insult to people with both developmental disabilities and mental illnesses.

Jeremy, quite unintentionally, brings up an interesting topic - what does influential really mean on the internet? While Thomas Hawk may be widely read as blogger, does that really make him influential as a photographer? (Especially since the site cited as proof of his 'influence as a photographer' is pretty clear that it's a personal opinion.) I've read people discuss Jared Polin, and Strobist is widely mentioned... But Hawk? Only when he's (once again) mired in controversy or stirring the pot.

@Thomas F.: because theft is different from reuse (or "copyright infringement", if you like)? Depriving you of your car is radically different from "changing the medium, tone and details of a particular photograph even though its used in the same purpose [as a album cover] [that probably, on the balance, actually encourages people to be interested in Kind of Blue, including its album cover]".

Just a thought. Selection of the pen name "Hawk" was probably intended to reference the bird. But it also means"An audible effort to clear the throat by expelling phlegm." A Freudian slip or just coincidence??
Richard Newman

So Thomas Hawk wasn't called that as a boy? It's a "nom d'internet". My surname isn't really deGargoyle but who cares.

And the "Freetards" comment reminds me of the campaign by the soon to be late News of the World against paedophiles which resulted in a paediatricians house being daubed by "Paedotards".

While I would never insult people with mental problems, particularly because I have one myself, the "tard" postscript takes part of a word that denigrates people who don't deserve it and uses it to insult people who certainly do! Why have a problem with that?

I've never understood the allure of "Thomas Hawk", but though there are many such examples, he has outstripped his competitors in proving just how far one can get in the online photographic world on self-marketing alone. Unfortunately for him, sooner or later he will encounter actual photographers such as Maisel, and it's unfortunate that his insecurities in this regard are so damning that he feels he has to resort to such tactics.

I am 100% with Jay Maisel on this; I've had something similar done to me, albeit on a much smaller scale. Believe me, your perspective changes when one of your photos is appropriated under someone's misinterpretation of "fair use." Fortunately, my situation was resolved without the need for a lawsuit. Jay is protecting his legacy, and he has every right to do so.

We are in the middle of a revolution; information wants to be free. The internet and data and the people who work in that field (I do) are accustomed to finding ways to work around barriers in order to complete the project. It makes users and the public happy to have amazing programs or gadgets and their demands are insatiable.

I think this incident is easily seen as a data point in the legal side of that revolution without necessarily directing any moral or personal attacks at either party. Under different circumstances they might well have been firm friends.

There are many very serious issues, some of them possibly unanswerable. We have to decide how as a global society we want to reward those people who have the talent and dedication to devote themselves to art which cannot be protected from digital multiplication. These are major pillars of our society and culture; photography, cinematography, music, and of course writing in all forms.

As difficult a nut as it has been to crack, music is by far the easiest. The answer is that the copy has been dramatically devalued, fortunately if you are willing to sell it cheap most people will pay. iTunes, etc. But musicians now use their recorded work chiefly to become famous and their live gigs to become rich.

Unfortunately this does not translate well for authors, photographers and cinematographers. But at least cinematographers have iTunes too, and authors now have Kindle and iBooks. Each copy must be sold for less, but there is the consolation that your distribution market is now the entire planet and many will end up better off than they might have with a limited print run from a small publisher.

For some kinds of professional photography the music model may work well - the photographer is paid for the event - the wedding, the portrait, the fashion shoot. But holding onto the output of that shoot is likely a losing battle in the long term. And this is a depressing situation for the photographer too because the barriers to entry are low now, and there are literally millions of good amateur photographers whose abilities are not far off those few hundred(?) elite photographers that manage to make a good living at it.

Stock can go the ultra-cheap route, but almost no-one will be able to live off the income.

Fine-art photography? Damned if I know. Maybe it will have to be a live gig thing too. Gallery shows, etc. But I'm not sure enough people care. Hmm, I think I just had an idea for a business (others are doing it though). There are a LOT of galleries here, at any given time there are probably 20 (?) at least exhibitions on in London. Most of them make money only for the big institutions, but there are opportunities for smaller galleries and photographers to address the way the public sees photography.

At the gallery (as on the internet) you can look for free and buy the merchandise.

Alternatively abandon the new media and return to daguerrotypes or something if you must have limited supply.

One thing is clear though; Maisel is fighting a real-guard action here. And his is the losing side in the long term.

Back a few weeks ago, when all this discussion of derivative works, copyright and what constitutes originality, I was reminded of this photo I took a few years ago. Obviously I'm copying something in this picture, but what exactly?

Ironically not only does this photo show up wandering around the net from time to time , but I can't remember having taken it.
It's sort of an example of wandering around in something of a fugue state a la Storm de Hirsch* , and punching the button when it looks like a picture.

*Storm de Hirsch when asked by one of her students how she made her own films said that she would go into a trance and the next thing she knew it was a month later and the film was done.

"Also, Yahoo! didn't just buy some sort of intangible intellectual property: they were buying the assets of a website, including a codebase, design, data and domain."

apparently ignores the fact that the ones and zeros that comprise a codebase, design, data and domain on the Internet are just as "intangible" as the ones and zeros that make up a digitized image.

If he or his company did not own the intellectual property rights to the codebase and design, they may be of little or no value to the acquiror.

Data may only have significant value if it is protected by trade secrets.

A domain, as a compilation of protected intellectual property may have value under copyright law.

Design is perhaps the most "intangible" asset of all. It, too, would have little or no value without copyright law or a design patent.

There is probably a clause in the acquisition agreement saying something to the effect that Yahoo is acquiring "all right, title, and interest in and to all of Mr. Baio's or his company's copyrights, trade secrets, trademarks, patents and other intellectual property rights" in Mr. Baio's website.

If Mr Baio didn't recognize the value of his own copyrights in "intangible intellectual property" assets, it appears someone else probably did and respected them by paying for them.

Mike,
Your praise of Nicholl's piece makes me question the soundness of your judgement. Regardless of how one feels about the Baio/Maisel controversy — I, for one, take no side — one should not, in my opinion, give praise or attention to the piece. It is uninformed and mean-spirited, making use of guilt by association, blatant speculation, question-begging, and probably libel.

What were you thinking? I think of you as too nice and level-headed to fall far this kind of feces-flinging nonsense.

For me, two things come out of this. I'm glad Jay (who I know and have taught with) was able to defend his copyright and won. But, the more I hear Andy Baio in his own voice the more I like him. I think he was wrong on the use of the image, but he's been decent in his public statements and I appreciate that. Jay is a good guy to sit down and have a beer with. My impression is that Andy Baio would pass the same test. It would at least be interesting and would probably be rewarding.

i don't think Jeremy Nicholl's article is journalism at all; journalists work to vet their information, and they don't publish inuendo, use pejoratives or engage in tit-for-tat attacks; Nicholl seems to be a destructive pundit adding fuel to the fire, and that TOP would link to him with admiration disappoints me

that said, it was worth knowing about if only to read Andy Baio's response; without taking sides, i do feel that everything i have read from Baio, in contrast to Hawk and Nicholl (and now TOP), has been measured and upstanding; please don't contribute to the spiral

I always find this statement amusing. Information--having no feelings--doesn't "want" anything. Rather, people who want things but don't want to pay the cost of producing those things have always wanted those things to be "free," and information is no exception. (Is it that hard to say "I personally want information to be free"?)

Unfortunately, national economies around the world are only starting to exhibit the consequences of the web generation's new reluctance to pay for anything non-material, an attitude that as it spreads will result in the large-scale permanent loss of jobs. As we're seeing, the first generation to really embrace that idea will end up paying for it-- through record unemployment.

This whole flap has been frustrating on so many levels. Ultimately, it's just extremely negative publicity (yes, there is such a thing as bad press) for both Andy Baio and Jay Maisel.

Jay should have just called Andy and asked him to change the cover—I'm sure they could have worked something out. Jay's lawyers should have issued a cease & desist first—did they? If there was a C&D, Andy shouldn't have fought it, because Fair Use is so dangerously subjective. Anyone following Shepard Fairey's case knows that.

(Is it that hard to say "I personally want information to be free"?) (elided for brevity)

They don't want information to be free. They want freedom to take whatever they want for free. A song, a book, a photo is no more "information" than a piece of bread is "information".

I can give you a recipe for bread that is information. I can tell you the camera settings that made it possible for me to capture a successful concert photo. That is information, too.

But my actual bread or my actual photo are the result of my work, of what I did with the information. Feel free to do your work with the information.

And therein lies the problem. People understand that not everybody's capable of creating a great song, people understand that not everybody's capable of writing a great book. But--because of the ubiquity of cameras--everybody thinks that a photo is something everybody can do. That it's like a grain of sand that anybody can pick up. It's not, happy accidents notwithstanding.

The ease of copying in the digital era also makes people think the act of creation is trivial.* So they want all the created work to be free for them to do with it what they want. Sorry, no. If it's easy, it doesn't mean it's okay.

Finally, when did the work become anathema? It's all now about instant gratification. Everybody wants to be on a postage stamp but nobody wants to die. Even homages now consist of something that computers 15 years ago did in a millisecond instead of doing your own work.

* That same ease of copying is what makes RIAAs and MPAAs think that everybody who downloaded a song or a film illegally would have bought the work. Well, if it wasn't so easy, a (great?) number of them certainly wouldn't have bothered and certainly wouldn't have bought it. But that's a different matter.

I'm so tired of people quoting "information wants to be free" with no understanding of what it means. It's like if you heard that America was the "home of the free" and concluded that Americans were cheap dates.

The full quote is:
"On the one hand information wants to be expensive, because it's so valuable. The right information in the right place just changes your life. On the other hand, information wants to be free, because the cost of getting it out is getting lower and lower all the time. So you have these two fighting against each other"
The context it a conversation between Stuart Brand and Steve Wozniak.

It is something like that other anthropomorphic aphorism "Nature abhors a vacuum" when you know that nature has no morals at all. It means among other things that that once a secret is revealed you can't make it a secret again.

Although the "free" is not referring to monetary value it is interesting that most information becomes more valuable the more widely dispersed it is. For instance the information that a tsunami is on the way is of no value until you broadcast it. The whole advertising industry is based on the fact that information is more valuable the more wide spread it is.

The reason Jay Maisel's "kind of blue" photo is so valuable is because it is so widely distributed. If it were a secret it would hardly have any of its value.

Getting paid for stuff in fields where the business model is that no one gets paid for working is a whole other topic

Saying that a Ferrari wants to be driven fast is not to imbue agency to an inanimate object. It is a comment about the design of a system and how it influences the people who operate it. When you drive a Ferrari it is very difficult to stick to 30mph, it wants to go fast.

Data networks and systems are designed to avoid information loss. They are designed to be replicate data, have no single points of failure, to have every piece of information spread across multiple locations. Once made available for consumption it can be copied without loss or damage to the original. It is almost impossible to prevent that copying. Search engines and archives and the world wide web encourage interconnectedness and replication of information. It is an emergent property of the internet and digitisation of information that the information then behaves as though it wants to be free. To think that it's just that "those blasted young people have no respect for other peoples hard work" is to fundamentally misunderstand the nature of the issue.

It is something that will have dramatic consequences for our societies, many of which we cannot yet foresee.

I just read through Baio's Twitter stream, and found out that Maisel's lawyers demanded compensation immediately. Simply taking down the offending content wasn't enough for them. Personally, I find that a little extreme. Knowing that, it's hard to sympathize with Maisel.

As regards the internet motto that 'information wants to be free', please don't anthropomorphise information. It doesn't like it.

As regards the original topic of conversation, I will admit that the discussion did get me agitated (though I believe my participation was civil and I've nothing to be ashamed of having written). My own reason for getting worked up was because of how Maisel was characterized on the site where I originally learned of the incident. That site was, frankly, unprofessional (and that site is one which is focused own web design professionals) and linked to Andy Baio's account which specifically asks readers not to get into name calling, etc. I still think Andy was in the wrong in how he used the photo (as I said, I don't think an independent record label would have used the 8bit version without getting clearance. The worst I think Andy is guilty of is naivete). I don't think the usage fell under 'Fair Use', but the way to be certain is to move the case through the courts.

What I do agree with the young kids these days (that is, when they're keeping off of my lawn) is that US Copyright law has been corrupted by corporate interests such that Copyright no longer represent the citizenry's interests. Thanks to the most recent extension, nothing will be falling into the public domain until 2019 (as I understand it). The irony is that these changes are largely due to the Disney company, which owes its success to benefiting from the public domain.

I would dearly like the copyright laws to become more favorable to individuals, but until that happens, current laws must be respected.

Ben: Upon receiving their original demand letter, I immediately pulled all the artwork offline, apologized for the confusion, and explained the limited scope of the project and the fact that only 300 albums were produced. Their response was that "this apology does not unring the bell of your infringement," and they offered a $75,000 settlement and reiterated their intent to file suit within ten days, so I was forced to hire a lawyer to handle the negotiations.

ipperson/James: You're both totally right, I concede the point entirely. All the things I mentioned absolutely fall under intellectual property.

In the "Kind of Blue" case, the commercial value of the work is significant and the copyright is properly registered. Issuing a C&D is a complete waste of time. If there is an obvious infringement and if the work is properly registered, the most effective course of action to file suit immediately in Federal Court. Then you don't have to file C&Ds or DMR takedown notices. The infringer will do it for you (if they have any sense). If they don't, then the court will issue a restraining order. Now the infringer isn't ignoring you and your attorney, they are telling a Federal judge to go piss off (which is not something anyone wants to do unless they look really good in a bright orange jump suit). If the court refuses to file a retraining order, then your case is likely flawed.

People who issue C&Ds and DMRs typically don't have a registered copyright. Or if they do have a registered copyright, the commercial value of the work is insignificant. It is unlikely they will go to the expense of filing suit in Federal Court. So C&Ds and DMR takedowns are the only practical alternatives.

A fair old 'to-do' as we in England would say. When are we going to cut to the chase and get to the Hitler & Nazis comparisons...my body begins to tire of all this self-righteous indignation. I left this kind of spat in the playground many years ago.

(copied from a previous thread, but that was internet eons [g] ago...)

Here's a modest proposal. Speeding ticket fines have grown all out of proportion to the offense, due to the state's need to raise money. So, henceforth, I think the fair thing to do is that whenever the highway patrol pulls you over for speeding, they should politely ask you to stop and let you go.

That'll work, right?

Theft of work is widespread. Politely asking people to stop won't stop it, because there's no downside for the thief. If you were to steal my work and I catch you, if all that happens is you don't get to use it any more, what would ever dissuade you from continuing your larcenous practices?

Andy, I hope you saw my followup comment. At only 300 albums produced, that's over $100 per album for the "infringement," which definitely seems disproportionate to me. I'm sympathetic to rights-holders, but I don't believe copyright should be weaponized.

Mike,
Thanks for leading and moderating this discussion. In a world of abusive rudeness, personal attacks and internet mobbing, it is hard to find polite discussions about disagreements anymore.

While I believe Mr. Maisel was correct in the actions he took to preserve his rights to his work (which I have long admired), Mr. Baio has been gracious in his discussion of the events.

To me, the value of intellectual property laws is that if they are good, they enable creative, inventive and artistic people at least a chance to realize some reward for their work. Otherwise, the creative person is at the mercy of the megawealthy corporation on one hand or the ravages of an internet mob on the other.

Not every photograph or painting or song or software program is a masterpiece worth millions. However, to the extent that the public finds value and merit in its creator's work, the creator should be able to reap some benefit from the property.

And property should be the term we think about. If you would not take someone's camera without permission, why would you take a photograph he makes with that camera without permission?

One other problem that often clouds discussions of intellectual property is the word "intellectual". Sometimes I think there is a strong bias in the US against anything that smacks of intelligence or creativity. As if thinking clearly enough to write a great program or creating something beautiful is a much less worthy activity than digging a "shovel-ready" ditch. In my book, manual labor is just as dignified and to be respected as intellectual or creative labor. But that means that we need to respect things made by intellect and art as much as work done by manual labor.

Most of all, we need to show the kind of respect for each other that has been shown in this discussion.

What's missing from all the discussion on this topic is that Baio and his artist friend did not simply lift or modify the original photograph. The Kind of Bloop cover was not imported into, downsampled in, and re-saved from Photoshop. It was redrawn, painstakingly, from scratch, pixel-by-pixel, in a different art style.

Even then, if it had been the image itself being sold for a profit, Maisel would've had a point. But it wasn't; it was simply accompanying an entirely different product which was the actual thing people were buying.
So:

The original photo was never distributed;

What was distributed was artistically recreated from scratch by hand;

What was distributed was never directly profitable;

Maisel demanded money upon his first communication with Baio without so much as an inquiry beforehand.

I agree that "freetards" (to use that vulgar term) are incredibly annoying, but given all the facts, I fail to see how anyone, even people who live on, breathe, and swim in copyright, can be on Maisel's side here.

Jeremy cites "Copyhype" as supporting his position, but a scan of the blog suggests that its author doesn't think there's such a thing as fair use (and why not - there's no money for lawyers in defending fair use, compared to suing over it). More importantly, Jeremy just ignores completely anything about his own attempt to incite an Internet mob by urging people to contact Thomas Hawk's employer. As they say on the Internetz, "FAIL".

I am fascinated at the multiple sliding scales at work in a case like this.

At what point does a work of art become “iconic”, part of the public consciousness, and worthy of fair use and reinterpretation through collage and reuse? If Mr. Baio had used La Gioconda as the basis for the album cover, nobody would question that use (except, perhaps, the Louvre, who need to sell postcards), since the image is clearly in the public realm. If a photograph (shot for commercial use, it might be noted) becomes so iconic that it appears constantly in street art, tattoos, and t-shirts, at what point does it become okay to reinterpret it using the media of the day?

Parallel to that question is at what level of “unfair use” or theft does Mr. Maisel stop worrying about the unlicensed use? Does he (or his lawyers) troll the streets of New York looking for illegal tattoo, chalk painting, or t-shirt artists using Miles’ lovely face for profit? Or does he only worry about uses that get some traction on the web and in the press? Or perhaps only the ones that can realistically generate some press and the possibility of a settlement?

It seems apparent that Mr. Maisel might be able to just calm down and welcome the iconic status his image has achieved, and perhaps recognize that it (and he) can withstand the odd reinterpretation. Remember, Willem de Kooning famously gave a drawing to Robert Rauschenberg to erase for a work. It elevated both of them, and showed the confidence de Kooning had in the strength of his work, and the value in Rauschenberg’s work.

Gen Y is on its way, and its impact on copyright will be major. Why is this? Put simply, we grew up in a culture of mass media and hyper-culture, compared to previous generations. Our exposure to art is unprecedented. This leads to a much greater proportion of artists (people who create) on the whole, comprised mostly of "amateur artists".

What is an "amateur artist"? It is someone who uses the creation tools he has at his disposal (camera, phone, computer) to create, remix & share en masse, but not necessarily with a guiding vision. An original vision is the prerogative of the "pro artists". An "amateur artist" also doesn't make a living out of his art.

"Amateurs artists" have been too exposed to art for their vision to be original. What will be unique is the way they assemble our influences in their own way. This is the reason that they consider Baio's friend (who created the pixel art) a true artist: he takes two influences, one vintage and one recent, and assembles them in a creative way, producing the art that started this conversation.

As such, their creativity is threatened by Maisel-type behaviors. They could be sued by the very ones who provide them with inspiration -- without truly understanding why.

I think one needs to look no further for the misunderstanding between Baio and Maisel supporters.

(I'm truly sorry for all the weird formulations, I'm not an native English speaker, much less writer. Also, these thoughts are being written down for the first time, so I may change my mind on some things and develop other thoughts as time goes by)

I won't weigh in on the case itself, but Jeremy Nicholl's article is a string of loosely associated logical fallacies including ad hominem attacks, straw men, accusations of guilt by association, and assumption. And he finishes it off with a call to arms like the one he's trying to denounce.

Mike, you said:"Jeremy is most concerned with the reactionary mob-like response whipped up by a third party that was directed at Jay Maisel."

I would just like to point out that Jeremy is urging people to respond to his business. How is this not trying to whip up a mob-like response?

Jeremy's article wasn't journalism. It implied a link between Andy and Peterson when there wasn't one and uses that implication to paint Andy as the person encouraging people mob Maisel. It's uses biased language like "Andy Baio, who heisted Maisel’s photo of Miles Davis" (emphasis added) and uses incendiary language like "freetard". Due to it's obviously distorted tone, you can't take anything Jeremy says as reporting. His article is a vicious internet flamewar rant and shouldn't be treated like real journalism.

"Although the "free" is not referring to monetary value it is interesting that most information becomes more valuable the more widely dispersed it is. For instance the information that a tsunami is on the way is of no value until you broadcast it."

There's different types of value at play here. It's like kinetic versus potential energy: There's the value of collective actions taken in response to information, but there's also the value of potential, strategic uses for the information -- the personal gain one could make through its use or disclosure -- and this potential value has an inverse relationship to how widely dispersed the information is.

So, in the former sense, yes, the value of knowing that a tsunami is on the way is greatly magnified if it's broadcast in time to let people prepare and evacuate. But supposing I alone held that information, and was amoral about its use, then this information has a mind-boggling extraordinarily high value while it is still within my control. I can extort people for the knowledge. I can decide, in a fashion, who does and does not receive the warning. That's what the first part of the quote is getting at.

Of course, once the information is shared, others gain that power too, and as it spreads this "potential" aspect is diluted. Past a certain point, the value of the common good outweighs the potential personal gain. You can't sell a secret if it was just broadcast on the news. This speaks to an alternative rationale for how "information wants to be free": the more widespread the information is (or seems to be), the less reasonable it becomes to expect to sell it to someone else, because there's many other people who are probably will to share it for free. Thus the more widespread information is, the more easily it spreads: there's more people willing to share it, and they're willing to do so with less expectation of personal gain.

@ctein:

"Here's a modest proposal. Speeding ticket fines have grown all out of proportion to the offense, due to the state's need to raise money. So, henceforth, I think the fair thing to do is that whenever the highway patrol pulls you over for speeding, they should politely ask you to stop and let you go."

And yet many highway patrol officers are reasonable people and use their own judgement and discretion to do exactly that, quite often. Depending on the context -- the traffic and weather conditions at the time, the reason for your speeding, the sense of character they get from you -- they might let you off with a warning, or reduce the reported over-limit (and thus ticket cost), or even choose not to pull you over in the first place. It's all about taking the action that is more in proportion to your offense in that context.

Opening with a C&D in for the Kind of Bloop would have demonstrated a similar sort of appreciation for context. That doesn't rule out the possibility of skipping a C&D and jumping straight to a lawsuit in more flagrant, commercial instances of infringement.

Commenters on my site collectively don't often miss potentially important facets of any debate, but one thing that seems to have been collectively completely overlooked here is this: maybe, just maybe (I really don't know), Jay Maisel considered the 8-bit "Kind of Bloop" a travesty and a desecration; maybe he was angry and dismayed that it was done; maybe he thinks it devalues and denigrates a revered classic of music (he probably knew Miles, Bill Evans, John Coltrane, Cannonball Adderly and the others personally, remember); maybe he was angry and upset that his cover image was similarly treated, and thinks that it was disrespected and devalued, and he *wanted* to punish the perpetrator.

I haven't spoken to Jay and I don't know if this was true or not or partially true or not, but it's at least a possibility. No one seems to consider that.

I don't really belong here and haven't followed this case all that closely, but allow me to make a few observations:

I think that Terry Hart could well be right that the law would side with Maisel. I don't think its hard to conclude that distributing an album of songs and cover art, both of which are derived from the original represents a sufficiently close substitute of the original pieces of work to fall well within legal precendents of copyright violation. Perhaps the outcome would be different if the image had not been associated to the distribution of the derivative songs, but for some purpose not so easily associated with the album.

That said, the law isn't always just or fair. The acrimony around the internet is ultimately a moral objection, not merely a disagreement about what the law is or its interpretation. Moreover, society is more than just laws. Many people consider the Maisel camp's decision to shoot first and ask question later immoral, a violation of social norms. The lawyers might not like that, but laws only work if there is broad agreement about them in the populace. (See "The Prohibition Era"). So to those who say "the law is the law, we've got to respect it" I think you need to read some history.

I think there is a strong economic case for a much bigger public domain than we now have. Except in rate instances, the private benefits of copyright (e.g. royalties) are long since exhausted after 10 or so years (look at front loaded revenues of movies and music) and in rare instances where they aren't the benefits often don't accrue to original creator and, hence, don't motivate creativity (the reason we have copyright laws in the first place). The potential social benefits of a larger public domain are potentially huge. We all stand on the shoulders (of the previous generations) giants after all. A larger public domain, such as a shorter copyright term, would benefit actual creators at the expense of big content and lawyers.

"I'll be using the remainder to print a very limited run of CDs for Kickstarter backers, and split the rest evenly among the five musicians for their painstaking work. (This is a labor of love for me, so I won't be keeping a dime.)"

According to the kickstarter page, there were 212 people getting the CD with the printed pixelated cover, 203 people got the early $5 digital download. Since kickstarter was the main promotion tool, i don't think that there were more than 1000-2000 people in total that bought the album (at least till this whole conflict started).

I accept that it takes artistic finesse to frame, expose and shoot at the right moment to get the perfect photograph, but the artistic foundation of this particular cover-artwork comes from a passionate Miles Davis playing at a concert. That Jay Maisel takes the liberty to, as it looks, just sue the hell out of Andy Baio with astronomical claims, for an artwork where he had only partial influence, just doesn't seem reasonable to me, especially since this was a non-profit project.

People should have the right to comment, criticize, transform or quote artwork, even if the orginial author doesn't like it. In the same way artists need protection so they don't get ripped off, people/artists should have a basic protection from unreasonable high fines when someone feels that their original was not treated the right way.

It appears that most of the reaction from Hawk and his ilk is the immature reaction of children who throw tantrums when they are made to behave appropriately. If the kids want to play in the adult world they have to follow the adult rules. Things actually do belong to other people and you really do have to ask permission to use them and pay for that right. Imagine that.
Remember when Metallica sued Napster? Remember one of the many things that the drummer Ulrich said about it,"borrowing things that were not yours without asking." Same thing. You just can't take what belongs to someone else and use it without permission. It also doesn't matter how long you've owned it. If someone owned it for 30 years it's still theirs and you still have to ask to use it. If a guy owned a 30 year old car and you wanted to use it, you'd still have to ask and you'd still have to pay for the gas. It's a simple concept but it seems that many people can't understand it.
This is a matter of telling the kids to grow up and behave themselves.

Parody, or transformation can be commercial. I think the idea is to add to or comment on the original work. It's trite to say that nothing is truely new, but that doesn't make it any less accurate. I think at least, this is best established in the Two Live Crew case over Pretty Woman.

The conversation has calmed down, but still, Mike, I wanted to react to your comment on Maisel's reaction being possibly emotional.

I think the reason nobody has raised this point (yet) is that this point has already been made: didn't Maisel's own counsel say that the former felt 'violated' to see his picture 'pixelated'? So the reaction is obviously emotional in nature.

However this is contradiction with the spirit of copyright law. Copyright law is there to allow artists to make 'a dignified living' out of their pictures, not hoard their rights by controlling all apparitions and expressions of their creation.

So you're really stating something quite dangerous, I think. How would you feel if the artist who designed the lightings of the Eiffel Tower moderated pictures taken of his creation, filtering out the ones he doesn't like? How would you, as a photographer, feel?

Artistic creations take on a life of their own (due to the artist putting part of his soul in it?) and should be allowed to 'live their life': inspire others, breed similar creations... Of course, this philosophical and heartfelt point of view (plea?) should not find much audience in the photographers of today, concerned more with their rights than with moral obligations such as generosity.